Nicholas Alley v. Anduril Industries, Inc. et al

Filing 63

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Joint Stipulation for Protective Order 62 . See document for details. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 v. 13 15 Anduril Industries, Inc. and Area-I, LLC, 18 19 20 21 22 23 24 25 26 27 28 [DISCOVERY DOCUMENT: REFERRED TO MAGISTRATE JUDGE KAREN E. SCOTT] Defendants. 16 17 STIPULATED PROTECTIVE ORDER Plaintiff, 12 14 Case No. 8:23-cv-01793-JWH-KES Nicholas Alley, 1. A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 1 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 2 that must be followed and the standards that will be applied when a party seeks 3 permission from the court to file material under seal. 4 B. GOOD CAUSE STATEMENT 5 Plaintiff Nick Alley asserts discrimination, retaliation, and breach of contract 6 claims against Defendants Anduril Industries, Inc. (“Anduril”) and Area-I, LLC 7 (“Area-I”). Anduril is an American defense company specializing in autonomous 8 systems. Area-I, a wholly-owned subsidiary of Anduril, is a private aerospace 9 defense company dedicated to the development of uncrewed aircraft technology. 10 This action is likely to involve commercial, financial, technical and/or proprietary 11 information for which special protection from public disclosure and from use for any 12 purpose other than prosecution of this action is warranted. Such confidential and 13 proprietary materials and information consist of, among other things, confidential 14 business or financial information (including non-public financial information 15 concerning Anduril Industries, Inc.’s acquisition of Area-I, LLC, as well as Anduril 16 Industries, Inc.’s and Area-I, LLC’s operations), executive employment terms that 17 are the product of private contractual negotiations between Anduril and Plaintiff 18 Nicholas Alley, other non-public employment and/or personnel-related information 19 concerning Alley, medical records and other health-related information concerning 20 Alley, information regarding confidential business practices, plans, strategies, or 21 operations, or other confidential research, development, or commercial information 22 (including information implicating privacy rights of third parties), information 23 otherwise generally unavailable to the public, information otherwise potentially 24 exposing Anduril or Area-I to competitive harm, or which may be privileged or 25 otherwise protected from disclosure under state or federal statutes, court rules, case 26 decisions, or common law. Accordingly, to expedite the flow of information, to 27 facilitate the prompt resolution of disputes over confidentiality of discovery 28 materials, to adequately protect information the parties are entitled to keep -2- 1 confidential, to ensure that the parties are permitted reasonable necessary uses of such 2 material in preparation for and in the conduct of trial, to address their handling at the 3 end of the litigation, and serve the ends of justice, a protective order for such 4 information is justified in this matter. It is the intent of the parties that information 5 will not be designated as confidential for tactical reasons and that nothing be so 6 designated without a good faith belief that it has been maintained in a confidential, 7 non-public manner, and there is good cause why it should not be part of the public 8 record of this case. 9 2. DEFINITIONS 10 2.1 Action: this pending federal law suit. 11 2.2 Challenging Party: a Party or Non-Party that challenges the designation 12 13 of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for protection 15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 16 Cause Statement. 17 18 19 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced or 25 generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve as 28 an expert witness or as a consultant in this Action. -3- 2.8 1 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 2.9 4 5 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: attorneys who are not employees of a party 7 to this Action but are retained to represent or advise a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm which 9 has appeared on behalf of that party, and includes support staff. 10 2.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 13 14 Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation support 16 services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 2.14 Protected Material: 20 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 21 22 from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. -4- Any use of Protected Material at trial shall be governed by the orders of the 1 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order shall remain in effect until a Designating Party agrees 6 otherwise in writing or a court order otherwise directs. Final disposition shall be 7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 8 or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 10 including the time limits for filing any motions or applications for extension of time 11 pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. The Designating Party must designate for 17 protection only those parts of material, documents, items, or oral or written 18 communications that qualify so that other portions of the material, documents, items, 19 or communications for which protection is not warranted are not swept unjustifiably 20 within the ambit of this Order. 21 Mass, indiscriminate, or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper 23 purpose (e.g., to unnecessarily encumber the case development process or to impose 24 unnecessary expenses and burdens on other parties) may expose the Designating 25 Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it 27 designated for protection do not qualify for protection, that Designating Party must 28 promptly notify all other Parties that it is withdrawing the inapplicable designation. -5- 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 7 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 11 contains protected material. If only a portion or portions of the material on a page 12 qualifies for protection, the Producing Party also must clearly identify the protected 13 portion(s) (e.g., by making appropriate markings in the margins). 14 A Party or Non-Party that makes original documents available for inspection 15 need not designate them for protection until after the inspecting Party has indicated 16 which documents it would like copied and produced. During the inspection and 17 before the designation, all of the material made available for inspection shall be 18 deemed “CONFIDENTIAL.” 19 documents it wants copied and produced, the Producing Party must determine which 20 documents, or portions thereof, qualify for protection under this Order. Then, before 21 producing the specified documents, the Producing Party must affix the 22 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 23 portion or portions of the material on a page qualifies for protection, the Producing 24 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 25 markings in the margins). 26 (b) After the inspecting Party has identified the for testimony given in depositions that the Designating Party 27 identify the Disclosure or Discovery Material on the record, before the close of the 28 deposition all protected testimony. -6- (c) 1 for information produced in some form other than documentary 2 and for any other tangible items, that the Producing Party affix in a prominent place 3 on the exterior of the container or containers in which the information is stored the 4 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants 5 protection, the Producing Party, to the extent practicable, shall identify the protected 6 portion(s). 5.3 7 Inadvertent Failures to Designate. If timely corrected, an inadvertent 8 failure to designate qualified information or items does not, standing alone, waive 9 the Designating Party’s right to secure protection under this Order for such material. 10 Upon timely correction of a designation, the Receiving Party must make reasonable 11 efforts to assure that the material is treated in accordance with the provisions of this 12 Order. 13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 14 Timing of Challenges. Any Party or Non-Party may challenge a 15 designation of confidentiality at any time that is consistent with the Court’s 16 Scheduling Order. 6.2 17 Meet and Confer. The Challenging Party shall initiate the dispute 18 resolution process under Local Rule 37.1 et seq. or follow the procedures for 19 informal, telephonic discovery hearings on the Court’s website. 6.3 20 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper purpose 22 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 23 expose the Challenging Party to sanctions. Unless the Designating Party has waived 24 or withdrawn the confidentiality designation, all parties shall continue to afford the 25 material in question the level of protection to which it is entitled under the Producing 26 Party’s designation until the Court rules on the challenge. 27 7. 28 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is -7- 1 disclosed or produced by another Party or by a Non-Party in connection with this 2 Action only for prosecuting, defending, or attempting to settle this Action. Such 3 Protected Material may be disclosed only to the categories of persons and under the 4 conditions described in this Order. 5 Receiving Party must comply with the provisions of section 13 below (FINAL 6 DISPOSITION). When the Action has been terminated, a 7 Protected Material must be stored and maintained by a Receiving Party at a 8 location and in a secure manner that ensures that access is limited to the persons 9 authorized under this Order. 10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 11 otherwise ordered by the court or permitted in writing by the Designating Party, a 12 Receiving 13 “CONFIDENTIAL” only to: 14 (a) Party may disclose any information or item designated the Receiving Party’s Outside Counsel of Record in this Action, 15 as well as employees of said Outside Counsel of Record to whom it is reasonably 16 necessary to disclose the information for this Action; 17 18 19 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 20 disclosure is reasonably necessary for this Action and who have signed the 21 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (d) the court and its personnel; 23 (e) court reporters and their staff; 24 (f) professional jury or trial consultants, mock jurors, and 25 Professional Vendors to whom disclosure is reasonably necessary for this Action and 26 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 28 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; -8- (h) 1 during their depositions, witnesses, and attorneys for witnesses, 2 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing 3 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 4 will not be permitted to keep any confidential information unless they sign the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 6 agreed by the Designating Party or ordered by the court. Pages of transcribed 7 deposition testimony or exhibits to depositions that reveal Protected Material may be 8 separately bound by the court reporter and may not be disclosed to anyone except as 9 permitted under this Stipulated Protective Order; and (i) 10 any mediator or settlement officer, and their supporting 11 personnel, mutually agreed upon by any of the parties engaged in settlement 12 discussions. 13 8. 14 IN OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 15 If a Party is served with a subpoena or a court order issued in other litigation 16 that compels disclosure of any information or items designated in this Action as 17 “CONFIDENTIAL,” that Party must: 18 19 20 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or 21 order to issue in the other litigation that some or all of the material covered by the 22 subpoena or order is subject to this Protective Order. Such notification shall include 23 a copy of this Stipulated Protective Order; and 24 25 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 26 If the Designating Party timely seeks a protective order, the Party served with 27 the subpoena or court order shall not produce any information designated in this 28 action as “CONFIDENTIAL” before a determination by the court from which the -9- 1 subpoena or order issued, unless the Party has obtained the Designating Party’s 2 permission. The Designating Party shall bear the burden and expense of seeking 3 protection in that court of its confidential material and nothing in these provisions 4 should be construed as authorizing or encouraging a Receiving Party in this Action 5 to disobey a lawful directive from another court. 6 9. 7 PRODUCED IN THIS LITIGATION 8 9 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 10 information produced by Non-Parties in connection with this litigation is protected 11 by the remedies and relief provided by this Order. Nothing in these provisions should 12 be construed as prohibiting a Non-Party from seeking additional protections. 13 (b) In the event that a Party is required, by a valid discovery request, 14 to produce a Non-Party’s confidential information in its possession, and the Party is 15 subject to an agreement with the Non-Party not to produce the Non-Party’s 16 confidential information, then the Party shall: (1) 17 promptly notify in writing the Requesting Party and the 18 Non-Party that some or all of the information requested is subject to a confidentiality 19 agreement with a Non-Party; (2) 20 promptly provide the Non-Party with a copy of the 21 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 22 reasonably specific description of the information requested; and (3) 23 make the information requested available for inspection by 24 the Non-Party, if requested. 25 (c) If the Non-Party fails to seek a protective order from this court 26 within 14 days of receiving the notice and accompanying information, the Receiving 27 Party may produce the Non-Party’s confidential information responsive to the 28 discovery request. If the Non-Party timely seeks a protective order, the Receiving - 10 - 1 Party shall not produce any information in its possession or control that is subject to 2 the confidentiality agreement with the Non-Party before a determination by the court. 3 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 4 of seeking protection in this court of its Protected Material. 5 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 Protected Material to any person or in any circumstance not authorized under this 8 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 9 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 10 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 11 persons to whom unauthorized disclosures were made of all the terms of this Order, 12 and (d) request such person or persons to execute the “Acknowledgment and 13 Agreement to Be Bound” that is attached hereto as Exhibit A. 14 11. 15 PROTECTED MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 16 When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other protection, 18 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 19 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 20 may be established in an e-discovery order that provides for production without prior 21 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 22 parties reach an agreement on the effect of disclosure of a communication or 23 information covered by the attorney-client privilege or work product protection, the 24 parties may incorporate their agreement in the stipulated protective order submitted 25 to the court. 26 12. 27 28 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. - 11 - 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in this 4 Stipulated Protective Order. Similarly, no Party waives any right to object on any 5 ground to use in evidence of any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the 9 specific Protected Material at issue. If a Party’s request to file Protected Material 10 under seal is denied by the court, then the Receiving Party may file the information 11 in the public record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in paragraph 4, within 14 60 days of a written request by the Designating Party, each Receiving Party must 15 return all Protected Material to the Producing Party or destroy such material. As used 16 in this subdivision, “all Protected Material” includes all copies, abstracts, 17 compilations, summaries, and any other format reproducing or capturing any of the 18 Protected Material. Whether the Protected Material is returned or destroyed, the 19 Receiving Party must submit a written certification to the Producing Party (and, if 20 not the same person or entity, to the Designating Party) by the 60 day deadline that 21 (1) identifies (by category, where appropriate) all the Protected Material that was 22 returned or destroyed and (2)affirms that the Receiving Party has not retained any 23 copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Protected Material. Notwithstanding this provision, Counsel are 25 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 26 and hearing transcripts, legal memoranda, correspondence, deposition and trial 27 exhibits, expert reports, attorney work product, and consultant and expert work 28 product, even if such materials contain Protected Material. Any such archival copies - 12 - 1 that contain or constitute Protected Material remain subject to this Protective Order 2 as set forth in Section 4 (DURATION). 3 14. 4 measures including, without limitation, contempt proceedings and/or monetary 5 sanctions. 6 15. 7 order against the Los Angeles County Bar Association’s standard form order. Any violation of this Order may be punished by any and all appropriate Attached hereto as Exhibit 1 is a redline of the parties’ proposed protective 8 9 10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: June 4, 2024 11 12 13 14 15 16 17 /s/ Riley Palmer Attorneys for Plaintiff DATED: June 4, 2024 /s/ Natasha W. Teleanu Attorneys for Defendants 18 19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 20 21 DATED: June 5, 2024 22 23 24 Karen E. Scott United States Magistrate Judge 25 26 27 28 - 13 - 1 2 3 SIGNATURE ATTESTATION The filing attorney attests that she has obtained concurrence regarding the filing of this document from each of the signatories to this document. 4 5 Dated: June 5, 2024 O’MELVENY & MYERS LLP 6 7 8 9 By: /s/ Natasha W. Teleanu Natasha W. Teleanu Attorneys for Defendants Anduril Industries, Inc. & Area-I, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ______________________________ [print or type full name], of 4 ______________________________ [print or type full address], declare under 5 penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central 7 District of California on __________________ in the case of Alley v. Anduril 8 Industries, Inc., et al., Case No. 8:23-cv-01793-JWH-KES. I agree to comply with 9 and to be bound by all the terms of this Stipulated Protective Order and I understand 10 and acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose in 12 any manner any information or item that is subject to this Stipulated Protective Order 13 to any person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint ______________________________ 18 [print or type full name] of ______________________________ [print or type full 19 address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Stipulated Protective Order. 22 23 Date: 24 City and State where sworn and signed: 25 26 Printed name: 27 28 Signature: - 15 -

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